Non-Solicitation Clauses in New York: Enforceability Guide

New York Applies a Reasonableness Standard

New York courts generally analyze non-solicitation agreements using the same framework applied to non-competes, but tend to view them more favorably because they are considered less restrictive. The key case is BDO Seidman v. Hirshberg (1999), which established a multi-factor reasonableness test.

Factors Courts Consider

New York courts evaluate non-solicitation clauses by looking at:

• Legitimate business interest: Does the employer have customer relationships, trade secrets, or confidential information worth protecting?
• Scope of the restriction: Is the clause limited to customers or contacts the employee actually worked with?
• Duration: Is the time period reasonable? Courts generally consider 1-2 years acceptable for non-solicitation.
• Employee hardship vs. employer benefit: Does the restriction impose an undue burden on the employee's ability to earn a living?

Customer vs. Employee Solicitation

New York courts are more likely to enforce customer non-solicitation clauses than employee non-solicitation clauses. Restrictions on recruiting former coworkers face closer scrutiny, particularly if they are broadly worded.

Consideration Requirements

For existing employees, New York courts generally require additional consideration beyond continued at-will employment. This might include a raise, bonus, promotion, or access to proprietary information. For new hires, the job itself typically constitutes adequate consideration.

Red Flags

• Clauses that restrict contact with all of the employer's clients, not just those you personally served
• Duration exceeding 2 years
• No additional consideration for existing employees
• Restrictions that effectively function as a non-compete by preventing you from working in your role
• Vague definitions of what constitutes "solicitation"

When to Consult a Lawyer

Consider consulting a New York employment attorney if your former employer threatens to enforce a non-solicitation clause, especially if you were not given consideration beyond your existing at-will employment. New York courts have the power to modify (blue-pencil) overbroad clauses, so understanding the likely scope of enforcement is valuable.

This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.